Hermaphrodites are either male or female.- A Khoonsa, or hermaphrodite, is a person possessed of the parts of
generation of both a man and a woman. If, therefore, such person discharge
urine from the male member he* [footnote *: The gender of an absolute
hermaphrodite is dubious. The translator follows the Arabic text in expressing
it throughout in the masculine, that being the most generally applicable.]
is accounted a male, or if from the female member, a female ; - because
it is so recorded in the traditions, and likewise reported from Alee; and
also, because the circumstance of the urine being discharged from either
member in particular, denotes that member to be the original, and the other
merely a defect. If, on the contrary, the person discharge the urine from,
both members, regard is paid to that from which it first proceeds, as this
denotes that member to be the original. If, on the other hand, the person
discharge his urine from both members equally (that in, at one and the
same time) he is a Khoonsamoosh'kil, or equivocal hermaphrodite, according
to Haneefa.

Or ambiguous.-Nor is any regard paid to the superior or inferior quantity of the
urine in this instance, because a superiority of discharge from either
member does not denote that member to be the primary, since this circumstance
arises merely from the urinary passage in the one being wider than in the
other. The two disciples maintain that regard must in this case be paid
to the comparative quantity of urine; and consequently, that the sex is
determined according to the member from which the greatest quantity proceeds;
because this denotes that member to be the superior and original and also,
because the greater quantity is, in effect of law, the whole. From whichever
member, therefore, the principal quantity of urine is discharged, that
member is accounted the superior. If, however, the urine proceed from both
passages alike (that is, at the same time, and in equal quantity), the
person is accounted an equivocal hermaphrodite, according to all our doctors,
as in this case neither member possesses any superiority over the other.
- What is here advanced applies solely to hermaphrodites not yet arrived
at the age of maturity; for upon an hermaphrodite attaining to maturity,
if his beard grow, or he have connexion with a woman, or nocturnal emissions,
or his breasts appear as those of a man, he is accounted a male, those
being indisputable tokens of manhood; but if the breasts swell like those
of a woman, or the menstrual discharge appear, or pregnancy, or carnal
connexion with a man, the hermaphrodite is accounted a female, such being
the tokens of womanhood. If, on the contrary, no distinguishing tokens
of either sex appear, or the tokens of both (such as a beard, with the
breast of a woman), the .person is an equivocal hermaphrodite.

Section II.

Of the Laws respecting equivocal Hermaphrodites

An equivocal hermaphrodite.- It is a rule with respect to equivocal hermaphrodites, that they
are required to observe all the morc comprehensive points of the spiritual
law, but not those concerning the propriety of which [in regard to them]
any doubt exists.

Must take his station, in public prayers, between the men and the
women.- An equivocal hermaphrodite, in standing behind the imam for the purpose
of prayer, must take his station immediately after the man and before the
woman, as it is possible that he may be a man, and it is also possible
that he may be a woman. If, therefore, he chance to stand among the women,
he must recite the prayers repeatedly, for as it is possible he way be
a man they would otherwise be nuagatory [sic]. If, on the contrary,
he stand among the men, his prayers are valid; but the men who are next
to him are to recite their prayers repeatedly, out of caution, as it is
possible that he may be a female.

Observing (in other respects) the customs of women.- IT is laudable in an equivocal hermaphrodite to cover his head, during
prayer, with the skirt of his garment, ang also to sit in the posture of
women; for if he be a man, this is merely a deviation from custom, which
does not imply any positive illegality; but if he be a female, his neglecting
so to do would induce an abomination, it being indispensably incumbent
on women to be covered upon that occasion. It is also laudable in him,
if he be without a garment, to recite the prayers repeatedly; but still
the prayers are lawful although he should neglect so to do. It is, moreover,
abominable in him to wear silk or jewels.

He must not appear naked before man or woman, or travel along with
either, except a relation; and he must be circumcised by a slave purchased
for that purpose.- It is abominable in an equivocal hermaphrodite to appear naked before
either man or women, or to be in retirement with either man or woman except
his prohibited relation. In the same manner, it is abominable in him to
journey in company with a man other than his prohibited relation, - or
with a woman not withstanding she be a prohibited relation, as it in not
lawful for two women to travel together, although they be relations. It
is also abominable that he be circumcised by either a man or a woman; and
therefore, to perform this ceremony, a female slave must be purchased at
his expense; - or, if he be destitute of property, the price of such slave
must be advanced to him, by way of loan, from the public treasury, with
which he way purchase her for the purpose of circumcising him; and having
so done, she is to be sold, and her price paid into the treasury, as he
has then no farther occasion for her.

Rules to be observed by him during a pilgrimage.- If an equivocal hermaphrodite undertake a pilgrimage during his adolescence
(that is, when nearly arrived at maturity), Aboo Yoosaf declares he is
uncertain which modes of dress is most proper for him to adopt; for if
he be a male, his wearing a seamed garment is abominable; and if he be
a female, it is abominable to wear any thing else. Mohammed, however, says
that he ought to wear a seamed garment, in the same manner as woman; because
it its still more abominable for a woman to neglect this during pilgrimage
than for a man to wear it.

Divorce, or emancipation, suspended upon the circumstance of sex,
are not determined, in relation to an hermaphrodite.- If a man suspend the emancipation of his slave or the divorce of
his wife, upon the circumstance of her producing "a male child," and she
be delivered of an hermaphrodite child the divorce or emancipation do not
take place until the sex or condition of the child be fully ascertained,
since the person canot incur the penalty, in this instance, because of
the doubt.

Until his sex be ascertained.- If a man declare, "all my male slaves are free," or. "all my female
slaves are free." and he be possessed of an hermaphrodite slave, this slave
is not emancipated until his real condition be ascertained, since here
the master cannot be forsworn, because of the doubt. If, on the contrary,
he thus mention his male and female slaves together, the hermaphrodite
is in that case emancipated, since one or other description applies to
him indisputably, as he must be either a male or female.

His declaration of his sex is not admitted.- If an hermaphrodite declare himself to be a male, or a female, and
he be of the equivocal description, his declaration is not credited as
his plea is repugnant to the suggestion of proof. But if he be not of an
equivocal description, his declaration may be credited, he being better
acquainted with his own state than any other person.

Rules to be observed in his interment.- If an equivocal hermaphrodite die before his condition be ascertained,
the ceremony of ablution must not be performed on his body by either man
or woman, neither of those being allowed to perform it to the other. Ablution,
therefore, being impracticable in this instance, the ceremony of teyummim
[rubbing with dust or sand] must be substituted for it; and it is mentioned
in the Jama Ramooz, that if the teyummim be performed by any other than
a prohibited relation, the hand must be covered with a cloth.

If a hermaphrodite die at an age bordering on maturity (at twelve years
of age, according to the Jama Ramooz), the corpse is not to have the ceremony
of ablution performed upon it, whether it be male or female. Upon depositing
it, moreover, in the tomb or grave it is laudable to cover the same with
a cloth, this being indispensable with respect to woman, although not with
respect to men.

When there is occasion to repeat the funeral prayers over a man, a woman,
and a hermaphrodite, at the same time, the bier of the man must be placed
next the Imam, that of the hermaphrodite next, and beyond all the bier
of the woman.

When there is any reason for interring a hermaphrodite in the same tomb
[or grave] with a man, the former must be deposited after the latter, as
it is possible that he may be a female; and a partition of earth must also
be constructed between them. If, on the other hand, a hermaphroclite be
interred in the same tomb [or grave] with a woman, he must be deposited
first, as it is possible that he may be a man.

It is laudable to shroud the body of a hermaphrodite in the same manner
as that of a woman, by wrapping it in five cloths; for, if it be a female,
such is that ordained practice with respect to women; and if it be a male,
that is merely an excess of two cloths, which is a matter of no moment.

Rules of inheritance with respect to hermaphrodites.- If a man die, leaving two children, one a hermaphrodite, and the
other a son, in that case, according to Haneefa, the whole inheritance
is divided between them in three shares, two going to the son, and one
to the hermaphrodite; because he hold a hermaphrodite to be subject to
the law of a woman, unless his condition be ascertained to be otherwise.
Shobbaia, on the contrary, maintains that in this case the hermaphrodite
is to receive half the share of a male heir, and half the share of a female,
- by first calculating the amount of his shares, supposing him to be a
male, and then the same supposing him to be a female, adding the two together,
and paying him a moiety of the added sums. Mohammed and Aboo Yoosaf subscribe
to this opinion. They however, differ in their exposition of it-; Mohammed
holds that the whole inheritance is to be divided into twelve parts, seven
of which go to the son, and five to the hermaphrodite; - whereas Aboo Yoosaf
alleges that it is to be divided into seven parts, four of which go to
the son, and three to the hermaphrodite. The argument of Aboo Yoosaf to
that the son, if he stood alone, would be entitled to the whole inheritance;
and the hermaphrodite, if he stood alone, would be entitled to three fourths
of the inheritance, - he being entitled (when standing alone) to a half,
if accounted a male, or to the whole, if accounted a female; for the whole
property consists of four quarters, the half of which is two quarters,
and these, being added together, make six quarters, the half of which is
three. Where, therefore, those two unite in one inheritance, the estate
is divided between them according to their respective proportions of right;
and as the right of the son is to four fourths, and that of the hermaphrodite
to three fourths, the former gets in the proportion of four, and the, latter
in the proportion of three: - and accordingly, the whole inheritance is
divided into seven parts, four of which go to the son, and three to the
hermaphrodite. The argument of Mohammed is that supposing the hermaphrodite
to be a male, the inheritance would be divided between him and the son
in equal shares; or supposing him (on the other hand) to he a female, it
would be divided between them in three lots. We must therefore have recourse
to the number which admits of division by two and by three; and as this
number is six, it follows that on the former supposition the inheritance
is to be divided equally between the two, three shares of the six going
respectively to each, - or that, on the latter supposition, it is to he
divided between them in three lots, two shares of the six going to the
hermaphrodite, and four shares to the son. The hermaphrodite, therefore,
is entitled to two shares, unquestionably; and there being still a doubt
with respect to the one redundant share, that it divided into two. Hence
the hermaphrodite gets two shares and an half; and a fraction thus falling
to his share, the root of the proposition (six) must be multiplied by two,
in order that there may be no fractions;* [footnote *: That is, in order
to reduce the whole to integral parts.] and the whole calculation,
being twelve, will come out right, in this way, that five go to the hermaphrodite,
and seven to the son. The argument of Haneefa is, that it is necessary
in the first place, to establish the hermaphrodite's right in the inheritance;
and as the smaller portion of inheritance (namely, that of a woman) is
unquestionable, and any thing beyond it is doubtful, that alone is to be
established, and due, which is certain and indisputable, not any more,
so a right to property is not admitted under any circumstance of doubt,
- the point in question being, in fact, the same as where a doubt exists
with respect to a right in property founded on any other cause beside inheritance,
in which case the unquestionable proportion only would be decreed, and
so here likewise; - excepting, however, in the case of a smaller share*
[footnote
*: Namely, a smaller share than the half of the whole.] going to the
hermaphrodite, supposing him to be a male; for then he would be entitled
to the share of a son, since, in such instance, that would be his indisputable
right; as where, for instance, a woman dies, leaving heirs her husband,
mother, and a full sister + [footnote +: This might be rendered, with
more strict property, "a fraternal connection", an hermaphrodite being,
in fact, neither a brother nor sister. The translator, however, thinks
it most advisable to adhere literally to the original.] who is an hermaphrodite,
- or, where a man dies, leaving heirs his wife, two maternal brothers,
and a full sister who is an hermaphrodite; - in the former of which cases
(according to Haneefa) one half of the property would descend to the husband,
a third to the mother, and the remainder to the hermaphrodite, - and in
the latter, a quarter would descend to the wife, a third to the two brothers
and the remainder to the hermaphrodite; for in both these cases the remainder
is smaller than either of the two full shares, that is, the share of the
hermaphrodite supposing him to be a man, and the same supposing the hermaphrodite
to be a woman.